State v. Perry

• Decision Date: 17 October 1899
• Citation: 80 N.W. 401,109 Iowa 353
• Parties: STATE v. PERRY.
• Court: Iowa Supreme Court

109 Iowa 353

80 N.W. 401

STATE

v.PERRY.

Supreme Court of Iowa.

Oct. 17, 1899.

Appeal from district court, Hardin county; S. M. Weaver, Judge.

The defendant, having been convicted of resisting an officer, appeals. Reversed.Geo. W. Ward, for appellant.

Milton Remley, Atty. Gen., and Chas. A. Van Vleck, for the State.

LADD, J.

The indictment charged that the defendant “did unlawfully and willfully resist and oppose one L. W. Harris, a deputy sheriff of Hardin county, Iowa, in serving and attempting to serve a certain search warrant.” On the trial the accused objected to the introduction of evidence because of the insufficiency of the indictment, and based a motion in arrest of judgment on the same ground. The statute under which the indictment was returned provides that “if any person knowingly and willfully resist or oppose any officer of this state, or any person authorized by law, in serving or attempting to serve any legal writ, rule, order or process whatsoever,” he shall be punished accordingly. Code, § 4899. It will be observed that “unlawfully” was inserted in the indictment instead of “knowingly,” used in the statute. As the word “unlawfully” formed no part of the description of the offense, it was superfluous and added nothing. State v. Capps, 4 Iowa, 502. It did not supply the omission of “knowingly.” An act may be knowingly done, and yet be unlawful, or it may be unlawful though done in ignorance. State v. Stalls, 37 Tex. 440;State v. Arnold, 39 Tex. 74. It was not enough, to constitute the offense, to charge the opposition or resistance to have been willful. It must also have been with knowledge that the person resisted or opposed was an officer. Such an averment was essential at common law. State v. Downer, 8 Vt. 428;State v. Hilton, 26 Mo. 199;Kernan v. State, 11 Ind. 471;Com. v. Kirby, 2 Cush. 577; State v. Maloney, 12 R. I. 251. Our statute is, in this respect, simply a statement of the law as it formerly stood. But the state urges that “knowingly” and “willfully” are synonymous, and that the omission of the former detracted nothing from the meaning of the indictment. To willfully do an act implies that it be done by design or with set purpose. One might purposely do an act which would have the effect of impeding an officer in the performance of his duties, in entire ignorance of the capacity in which such officer was acting. The obstruction denounced is that, not only designedly or purposely interposed, but with...